The MDL Factor: A Survey of Case Law Recognizing MDL

Most federal case law is generated in the confines of ordinary one-plaintiff, one-defendant litigation. To be sure, complex case management situations arise in areas like antitrust and class action litigation, but the number of relevant players remains low. Even where the number of stakeholders is potentially high such as class action litigation, the Federal Rules and Supreme Court case law provide more specific guidance. With respect to MDLs, however, governing case law on procedural, discovery, and case administration issues generally comes from standalone litigation and is silent on how those issues should impact the unique pressures and docket-management problems faced by MDL judges where there may be thousands of other stakeholders. Out of necessity, federal courts have begun issuing opinions that help solve the problems created by having to fit the square peg of one-plaintiff case law in the round hole of mass tort litigation. For example, the Fifth Circuit affirmed dismissal with prejudice of a case in the FEMA Trailer Fermaldehyde MDL in which a plaintiff sought to avoid selection and workup as a bellwether case by seeking dismissal without prejudice, thereby jeopardizing the district court’s schedule for moving the overall litigation forward. In doing so, the Fifth Circuit recognized that the decision to affirm was heavily motivated by the “MDL factor”:

We do not speculate on whether the motions to continue or dismiss without prejudice might have had some merit had this been ordinary two-party litigation. The challenge to case administration arose here from the court’s obligation to manage thousands of claims against numerous defendants in an efficient and expeditious manner that would best serve justice for both plaintiffs and defendants. That multiparty background heavily influenced the trial court and permeates this court’s review.

In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 628 F.3d 157, 161 (5th Cir. 2010) (affirming dismissal with prejudice after plaintiff dismissed the case voluntarily and then attempted to re-enter the MDL) (internal citations omitted).

As the Fifth Circuit alluded, the ruling may very well have been different if the same issue had been raised in the context of “ordinary two-party litigation,” but docket management considerations arising out of the need to efficiently move the wider litigation toward resolution dictated a stricter result. Id. at 162 (“It is not hard to justify the court’s decision to deny these alternative motions. [The plaintiff’s] attempt to withdraw as plaintiff or to continue seemed contrived . . . . [Among other things,] [t]he selection of a substitute bellwether plaintiff would inflict considerable inconvenience on the defendants.”).

This example from the FEMA Trailer Formaldehyde litigation is representative of a general trend that has been embraced by nearly every federal circuit, as well as many district courts that have presided over MDLs. These courts have intuitively and collectively recognized that MDL courts require a higher degree of discretion and deference to successfully manage and ultimately resolve the mass torts before them. As the Ninth Circuit aptly put it in the context of a diet drug mass tort, “multidistrict litigation is a special breed of complex litigation where the whole is bigger than the sum of its parts. The district court needs to have broad discretion to administer the proceeding as a whole, which necessarily includes keeping the parts in line.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1232 (9th Cir. 2006). Thus, a growing body of case law has emerged that embodies the “MDL factor”—one recognizing that a case’s consolidation in an MDL is a unique and important basis in and of itself for reaching rulings. MDL transferee courts have called out and applied the “MDL factor” as a distinct consideration in a variety of contexts where the governing test calls for weighing factors or taking a totality of the circumstances into account.

MDL counsel will frequently encounter disputes in individual cases—or involving the MDL inventory as a whole—and become frustrated that traditional single-plaintiff case law does not adequately account for the unique factual and procedural circumstances that MDL centralization presents. When that frustration arises, counsel should consider the case law outlined below. It provides a useful tool to persuade MDL judges to consider their burdens of mass tort management in reaching sound, fair, efficient decisions that resolve both the narrower issue at hand, while accounting for their impact on the broader litigation. As always, we provide the disclaimer that the case law below is not comprehensive of all opinions helpful on this subject; it is a list of opinions and orders that we have been compiling as we have encountered them in our practice, and that we believe merit the attention of counsel and judges. Notably, this case law appears to have developed organically (and in our view necessarily) because MDL docket management demands, above all else, practicality and creativity to provide order to a massive litigation. (The development of this body of law follows the observations of Justice Wendell Holmes about how our law has traditionally developed: “The life of the law has not been logic; it has been experience . . . .  The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” Oliver Wendell Holmes Jr., The Common Law 1 (1881).) All the courts in the excerpts below have recognized this principle, and whether it is a matter of convincing the MDL court to enter screening or Lone Pine orders requiring plaintiffs to present threshold factual or expert evidence to maintain their actions, or encouraging the court to dismiss individual cases when the conduct of individual counsel or the parties threatens the timely and cost-effective resolution of the MDL, the opinions below provide helpful authority and pithy quotes that can help you invoke the “MDL Factor” to tip the scales in favor of your arguments. 

Case Law by Circuit

First Circuit

In re Two Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litig., 994 F.2d 956, 965 (1st Cir. 1993) (“The exigencies of complex, multidistrict litigation change the ordinance with which courtroom battles are fought . . . . To facilitate this involvement, explicit grants of authority contained in the Civil Rules, which supplement the trial court’s inherent power to manage litigation, enable the judge to exercise substantial control and supervision over the conduct of the litigation . . . . In this multidistrict litigation, involving upward of 2000 parties and raising a googol of issues, Judge Acosta’s power to mandate contributions to, inter alia, a central discovery depository can scarcely be doubted.”) (internal citations omitted).

Second Circuit

In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 2019 WL 117302, at *2 (Jan. 7. 2019 S.D.N.Y. 2019) (“The Court’s discretion to suggest remand generally turns on the question of whether the case will benefit from further coordinated proceedings as part of the MDL . . . . ‘Because the purpose of multidistrict litigation is for the convenience of the parties and witnesses and to promote the just and efficient conduct of the cases, the decision of whether to suggest remand should be guided in large part by whether one option is more likely to insure the maximum efficiency for all parties and the judiciary’”) (quoting In re Merrill Lynch Auction Rate Sec. Litig., 2010 WL 2541227, at *2 (S.D.N.Y. June 11, 2010) and In re State St. Bank &  Tr. Co. Fixed Income Funds Inv. Litig., 2011 WL 1046162, at **3-4 (S.D.N.Y. Mar. 22, 2011); Harris v. Wyeth, Inc., 2012 WL 2317338, at *1 (S.D.N.Y. June 15, 2012) (“Plaintiff’s request would seem to undermine the very purpose of MDL proceedings, which is to coordinate and complete shared pretrial matters such as generic discovery.  Indeed, in the present context, the re-opening of discovery on the generic issues that are at the center of the action would render the more than seven years spent in the MDL Court largely for naught.”) (internal citations omitted).

Third Circuit

In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 687 F. App’x 210, 214 (3d Cir. 2017) (“As to their remaining arguments, we have recognized that multidistrict litigation ‘presents a special situation, in which the district judge must be given wide latitude with regard to case management in order to effectively achieve the goals set forth by the legislation that created the Judicial Panel on Multidistrict Litigation.’ This wide latitude applies, in particular, to issuing discovery orders, and to dismissing actions for non-compliance with such orders . . . .”) (quoting In re Asbestos Prods. Liab. Litig., 718 F.3d 236, 246-47 (3d Cir. 2013)); see also In re Asbestos Prods. Liab. Litig., 595 F. App’x 99, 102 (3d Cir. 2014) (“Strict compliance with case management and administrative orders is especially critical in MDL litigation.”)

Fourth Circuit

In re Lipitor Mktg., Sales Practices & Prods. Liab. Litig., 2016 WL 7340123, at **1-2 (D.S.C. Apr. 26, 2016) (“Courts are given broad discretion in managing an MDL docket with thousands of cases.  Because MDLs were created by Congress to encourage efficiency, MDL courts must be able to establish schedules with firm cutoff dates if the coordinated cases are to move in a diligent fashion toward resolution by motion, settlement, or trial. Thus, MDL courts have greater discretion to organize, coordinate and adjudicate its proceedings, including the dismissal of cases for failure to comply with its orders.”) (internal citations omitted); In re Cook Med., Inc. Pelvic Repair Sys. Prods. Liab. Litig., 2015 WL 4621604, at *2 (S.D. W.Va. July 31, 2015) (“In applying these factors [for a court sanction under Fed. R. Civ. P. 37] to the case at bar, I must be particularly cognizant of the realities of multidistrict litigation and the unique problems an MDL judge faces. Specifically, when handling seven MDLs, each containing hundreds to thousands of individual cases, case management becomes of utmost importance. I must define rules for discovery and then strictly adhere to those rules, with the purpose of ensuring that pretrial litigation flows as smoothly and efficiently as possible.”) (internal citations omitted).

Fifth Circuit

In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 628 F.3d 157, 161 (5th Cir. 2010) (“We do not speculate on whether the motions to continue or dismiss without prejudice might have had some merit had this been ordinary two-party litigation. The challenge to case administration arose here from the court’s obligation to manage thousands of claims against numerous defendants in an efficient and expeditious manner that would best serve justice for both plaintiffs and defendants. That multiparty background heavily influenced the trial court and permeates this court’s review.”).

Sixth Circuit

In re FCA US LLC Monostable Elec. Gearshift Litig., 2017 WL 6388981, at *4 (E.D. Mich. July 6, 2017) (“Plaintiffs must be willing to make reasonable sacrifices that further the goals of a multidistrict litigation, such as efficiency and a streamlined discovery process. Based on the information presented to the Court, holding all depositions in one central location may increase the possibility of completing multiple depositions on the same day, or completing numerous depositions on consecutive days.”) (internal citations omitted); In re Nat'l Century Fin. Enters. Inc. Inv. Litig., 323 F. Supp. 2d 861, 883-84 (S.D. Ohio 2004) (“[T]he factors can play out differently when the motion for mandatory abstention concerns an action in a multidistrict litigation case which is interconnected with complex bankruptcy proceedings.”).

Seventh Circuit

Dzik v. Bayer Corp., 846 F.3d 211, 216 (7th Cir. 2017) (“District courts handling complex, multidistrict litigation must be given wide latitude with regard to case management in order to achieve efficiency. That discretion extends to dismissing individual suits for noncompliance with the court’s orders, including discovery orders. Considering that Dzik’s lawyers—in their own words—did ‘mostly nothing’ after filing this lawsuit, the district court did not abuse its discretion by dismissing the case with prejudice.”) (internal citations omitted); In re Testosterone Replacement Therapy Prods. Liab. Litig., 2018 WL 6258898, at *2 (N.D. Ill. June 11, 2018) (“Case management is of the utmost importance in proceedings of this size, and MDL courts have even greater discretion to organize, coordinate and adjudicate their proceedings.”) (internal citations omitted); In re Depakote, 2017 WL 4518330, at *3 (S.D. Ill. Oct. 10, 2017) (“Lastly, to now grant these dismissals without prejudice would frustrate the Court’s ability to manage its docket as well as its strategy for advancing the mass action.”) (citing Dzik, 846 F.3d at 216).

Eighth Circuit

Freeman v. Wyeth, 764 F.3d 806, 810 (8th Cir. 2014) (“[W]e recognize that our circuit generally prefers merits dispositions over default judgments.  But that interest must be weighed against the unique problems an MDL judge faces, especially when the MDL litigation involves hundreds of attorneys representing thousands of clients.  The MDL judge must be given ‘greater discretion’ to create and enforce deadlines in order to administrate the litigation effectively. This necessarily includes the power to dismiss cases where litigants do not follow the court’s orders.”) (internal citations omitted); In re Prempro Prods. Liab. Litig., 423 F. App’x 659, 660 (8th Cir. 2011) (“We also recognize, however, that ‘administering cases in multidistrict litigation is different from administering cases on a routine docket.”’) (quoting In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867 (8th Cir. 2007) (“Congress established MDL protocols to encourage efficiency.  In order to do so, MDL courts must be able to establish schedules with firm cutoff dates if the coordinated cases are to move in a diligent fashion toward resolution by motion, settlement, or trial.  MDL courts must be given greater discretion to organize, coordinate and adjudicate its proceedings, including the dismissal of cases for failure to comply with its orders.”)).

Ninth Circuit

In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1232 (9th Cir. 2006) (“In sum, multidistrict litigation is a special breed of complex litigation where the whole is bigger than the sum of its parts. The district court needs to have broad discretion to administer the proceeding as a whole, which necessarily includes keeping the parts in line. Case management orders are the engine that drives disposition on the merits. With this in mind, we turn to the discrete appeals that arise from dismissals for failure to comply with [the Court’s CMOs].”) (internal citations omitted).

Eleventh Circuit

Thurmond v. Bayer Healthcare Pharms., Inc., 649 F. App’x 1003, 1006 (11th Cir. 2016) (“Here, Thurmond sought to amend her complaint on April 30, 2015, ten months after the deadline to amend pleadings, and three months after the close of fact discovery. . . In addition, Thurmond’s counsel represents plaintiffs in [MDL] involving an unrelated alleged defect in the Mirena IUS, and Bayer Oy and Bayer Pharma AG are both defendants. Thurmond’s counsel admits that the firm had access to the MDL database as of October 2, 2014, and was aware of the foreign parties’ role in developing the Mirena IUS—long before Thurmond moved for leave to amend. . . . The district court acknowledged that some delay may have been warranted given the obstacles to joining foreign entities. But as we see it, the district court did not abuse its discretion by denying leave to amend this late in the process”) (internal citations omitted).

D.C. Circuit

In re Fannie Mae Sec. Litig., 552 F.3d 814, 822-23 (D.C. Cir. 2009) (“District judges must have authority to manage their dockets, especially during massive litigation such as this, and we owe deference to their decisions whether and how to enforce the deadlines they impose. . . . Given the district court’s intimate familiarity with the details of the discovery dispute, the scale of the production requested, and the progress of the multidistrict litigation as a whole, we are ill-positioned to second-guess that assessment.”) (internal citations omitted).

Peter A. Meyer is a partner and Eldin Hasic is an associate at Faegre Baker Daniels LLP in their Fort Wayne, Indiana, office. 

The authors recognize the contributions made by Faegre Baker Daniels associate Anthony Finnell in conducting the initial research behind this article and law students Michael York and Blake Lehr for finishing the research while they were summer associates with the firm.

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